State of Tennessee v. Greg Lance ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned On Briefs November 6, 2012
STATE OF TENNESSEE v. GREG LANCE
Appeal from the Criminal Court for Putnam County
No. 99-0054 Leon Burns, Jr., Judge
No. M2012-01214-CCA-R3-CO - Filed December 11, 2012
Petitioner, Gregory Lance, was convicted of two counts of first degree murder, especially
aggravated burglary, and arson. His convictions were affirmed on direct appeal. State v.
Gregory Lance, No. M2001-02507-CCA-R3-CD, 2003 WL 1960270, at *1 (Tenn. Crim.
App., at Nashville, Apr. 28, 2003), perm. app. denied, (Tenn. Oct. 27, 2003). Petitioner
sought post-conviction relief. The denial of his petition was affirmed by this Court on
appeal. Gregory Paul Lance v. State, No. M2005-01765-CCA-R3-PC, 2006 WL 2380619(Tenn. Crim. App., at Nashville, Aug. 16, 2006), perm. app. denied (Tenn. Dec. 18, 2006).
In March of 2012, Petitioner filed a petition for writ of error coram nobis. It was dismissed
as untimely. After a review of the record, we affirm the dismissal of the untimely petition
for coram nobis relief as Petitioner made no allegations that would toll the statute of
limitations. Accordingly, the judgment of the coram nobis court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
A LAN E. G LENN, JJ., joined.
Greg Lance, Pro Se, Mountain City, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William E. Gibson, District Attorney General; and Anthony J. Craighead, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
The convictions at issue herein arose after the August 5, 1998, shooting deaths of the
victims, a husband and wife, and the arson of their home. Our direct appeal opinion provides
a synopsis of the evidence presented against Petitioner at trial:
The record shows that the victims were seeking to foreclose on
[Petitioner]’s trailer park. The victims were killed two days prior to a hearing
on whether the foreclosure could go forward in light of [Petitioner] having
filed for relief in bankruptcy. . . .
Three witnesses testified that prior to the murders, [Petitioner] solicited
their help in hiring someone to kill the victims or finding a stolen gun . . . .
...
Three days prior to the murders, [Petitioner] was seen target shooting at the
Herron farm. Bullets and shell casings from the Herron farm were matched to
a weapon found on the Bohannon farm near the victims’ home. Bullets and
shell casings from the murder scene and a bullet recovered from the victim’s
body also matched the same weapon found on Mr. Bohannon’s farm. Erik
Tanner and Keith Herbstreith both testified that they recognized the green cord
and the black flashlight attached to the gun as having belonged to [Petitioner].
...
In addition, Joel Brown and Steve Powell discovered two full cans of
gasoline at the Herron farm on the evening of the day that [Petitioner] was
seen at the property. The gas cans had not been there the day before. The gas
cans remained there until the night before the murders. [Petitioner]’s shoes
and socks were tested for the presence of gasoline, and the test revealed a
gasoline range product. Hairs on the backs of [Petitioner]’s hands were
singed.
Mike Herron alerted [Petitioner] to the investigation when he called to
ask [Petitioner] to check on his property. One day before investigators
searched the Herron property, [Petitioner] was seen burning wood and dresser
drawers, which the jury could reasonably conclude held bullet fragments from
[Petitioner]’s target practice.
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[Petitioner] traveled to Arizona following the murders. [Petitioner]
refused to speak to Rocky Harmon on the phone after the murder, believing
that his phone was tapped. [Petitioner] warned Harmon not to talk to
investigators. When Erik Tanner returned to Tennessee from Arizona,
[Petitioner] did not allow him to stay at his home and warned him to avoid the
TBI.
State v. Gregory Lance, 2003 WL 1960270, at *17. As a result of the evidence presented
against Petitioner at trial, he was convicted of two counts of first degree murder, especially
aggravated burglary, and arson. He received an effective sentence of life imprisonment. We
affirmed his convictions and sentence on direct appeal. Id. The Tennessee Supreme Court
denied permission to appeal.
Subsequently, Petitioner filed a pro se petition for post-conviction relief in which he
raised numerous claims, including ineffective assistance of trial and appellate counsel.
Gregory Paul Lance v. State, 2006 WL 2380619, at *2. The post-conviction court held a
hearing on the petition, during which five witnesses testified. Id. The post-conviction court
denied relief. This Court affirmed the denial of post-conviction relief, stating:
The record reveals that appellate counsel was an experienced trial and
appellate attorney who spent many hours in preparation for the appeal. The
record further reveals that appellate counsel provided a reasonable explanation
for his reliance on the hearsay exception in Rule 404, testifying that he viewed
it as a vehicle for the admission of both of Horn’s statements, and not just the
statement Horn allegedly made before the killings. Moreover, as revealed by
the summary contained in this court’s direct appeal opinion, the State
presented a compelling circumstantial case against the petitioner, which
included evidence linking him to the murder weapon and testimony by three
witnesses that he solicited their help in hiring someone to kill the victims.
Thus, even had hearsay testimony been admitted indicating that a third party
had threatened to kill the victims, it is unlikely, given the accumulated
evidence against the petitioner, that it would have changed the outcome of his
trial. The petitioner has not, therefore, met his burden of demonstrating either
that appellate counsel was deficient for failing to base his argument for the
admissibility of the hearsay testimony on Rule 403(3), or that he was
prejudiced as a result of counsel’s alleged deficiency.
Id. at *6. Again, our Supreme Court denied permission to appeal.
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On March 12, 2012, nearly six years later, Petitioner filed a petition for writ of error
coram nobis. In the petition, he made various claims, including the assertion that newly-
discovered evidence existed that proved his innocence. Specifically, Petitioner alleged that
“trial counsel had an undisclosed conflict of interest” and when a conflict of interest is
present, prejudice is presumed. Petitioner states that he discovered the conflict after he filed
suit against the District Attorney under the Public Records Act. The State responded to the
petition, arguing that the petition was untimely and should be dismissed. Further, the State
insisted that a “conflict of interest” was not a proper basis for coram nobis relief.
The coram nobis court dismissed the petition as untimely on May 4, 2012. In the
order dismissing the petition, the court stated:
The petition has been filed over six (6) years outside the statute of
limitations and does not allege “subsequently or newly discovered evidence
that may have resulted in a different judgment, had it been presented at trial”
as is required by statute.
Petitioner filed what appears to be a second petition for coram nobis relief on May 16,
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2012. There is no order disposing of this petition for relief in the record on appeal.
Petitioner filed a timely notice of appeal, challenging the coram nobis court’s dismissal of
the first petition as untimely.
Analysis
On appeal, Petitioner argues: (1) the Supreme Court decision in Wlodarz v. State, 361
S.W.3d 490 (Tenn. 2012), includes a new trial hearing under the definition of trial such that
he is entitled to relief herein; (2) the coram nobis court abused its discretion by failing to
apply the Wlodarz standard; (3) the “Suspension Clause/Federal and State . . . Right to Court
. . . is violated by there being no available relief for a hidden violation of the right to conflict
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In the second petition, Petitioner asserts: (1) that a juror came forward after trial claiming that the jury did not
believe Petitioner committed the murders but voted guilty because they believed Petitioner knew who killed the victims;
(2) the “[d]isbarred attorney general “manipulated” the State’s star witness into providing false testimony at trial; (3)
witness Herbstreith was granted immunity in exchange for false testimony; (4) the physical facts of the case “are
controlling over eyewitness testimony”; (5) a newly discovered statement by Daron Dunn proves Petitioner’s innocence;
(6) State’s counsel failed to disclose trial counsel’s conflict of interest; (7) the State suppressed evidence of crime scene
footprints, fingerprints, and photographs that exculpated Petitioner; (8) the State was aware that the murder weapon was
sold to Sam Horn; (9) an affidavit from former FBI agent Jim Harcum proves that Robert Sheppard testified falsely at
trial regarding whether the murder weapon was stolen from his business; (10) the trial testimony of Marlin Ray, Mike
Snow, and Brian Brinker has been recanted; (11) plain error review requires an examination of the trial court’s jury
instructions on first degree murder and the lack of an instruction on solicitation; (12) a reenactment of the crime scene
shows that the State’s theory was physically impossible; (13) Tennessee Rule of Evidence 606(b) unconstitutionally
prohibits Petitioner from presenting evidence in his favor; and (14) repeated and damaging actions by the State’s attorney
resulted in an unfair trial.
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free counsel”; (4) the coram nobis court erroneously denied the petition for relief; and (5) the
coram nobis court improperly refused to toll the statute of limitations. The State insists that
the coram nobis court properly dismissed the petition as untimely and points out that
Petitioner has raised issues on appeal that were not presented in the court below.
At the outset, we note that this appeal pertains solely to the dismissal of the petition
for coram nobis relief filed on March 12, 2012. The trial court’s order dismissing this
petition does not address the petition filed by Petitioner in May. Petitioner’s notice of appeal
indicates that this is an appeal from the dismissal of the first petition for relief. Therefore,
any issues raised in the second petition for coram nobis relief are not properly before this
Court.
Relief by petition for writ of error coram nobis is provided for in Tennessee Code
Annotated section 40-26-105. That statute provides, in pertinent part:
(b) The relief obtainable by this proceeding shall be confined to errors dehors
the record and to matters that were not or could not have been litigated on the
trial of the case, on a motion for a new trial, on appeal in the nature of a writ
of error, on writ of error, or in a habeas corpus proceeding. Upon a showing
by the defendant that the defendant was without fault in failing to present
certain evidence at the proper time, a writ of error coram nobis will lie for
subsequently or newly discovered evidence relating to matters which were
litigated at the trial if the judge determines that such evidence may have
resulted in a different judgment, had it been presented at the trial.
(c) The issue shall be tried by the court without the intervention of a jury, and
if the decision be in favor of the petitioner, the judgment complained of shall
be set aside and the defendant shall be granted a new trial in that cause.
T.C.A. § 40-26-105 (b), (c). The writ of error coram nobis is an “extraordinary procedural
remedy,” filling only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d
661, 672 (Tenn. 1999). The “purpose of this remedy ‘is to bring to the attention of the trial
court some fact unknown to the court which if known would have resulted in a different
judgment.’” State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex
rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1996)). The decision to grant or deny a
petition for writ of error coram nobis rests within the sound discretion of the trial court.
Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988), overruled on other grounds
by Mixon, 983 S.W.2d at 671 n.13.
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A petition for writ of error coram nobis must relate: (1) the grounds and the nature of
the newly discovered evidence; (2) why the admissibility of the newly discovered evidence
may have resulted in a different judgment had the evidence been admitted at the previous
trial; (3) the petitioner was without fault in failing to present the newly discovered evidence
at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v. State, 160
S.W.3d 548, 553 (Tenn. Crim. App. 2004); Hart, 911 S.W.2d at 374-75. Our supreme court
has held that the following analysis applies to the determination of whether a petition can be
successful on a petition for a writ of error coram nobis, “‘whether a reasonable basis exists
for concluding that had the evidence been presented at trial, the result of the proceedings
might have been different.’” State v. Vasques, 221 S.W.3d 514, 526 (Tenn. 2007) (quoting
State v. Vasques, No. M2004-00166-CCA-R3-CD, 2005 WL 2477530 at *13 (Tenn. Crim.
App. at Nashville, Oct. 7, 2005), aff’d, Vasques, 221 S.W.3d 526.
A petition for writ of error coram nobis must usually be filed within one year after the
judgment becomes final. See T.C.A. § 27-7-103; Mixon, 983 S.W.2d at 670; Freshwater,160
S.W.3d at 553. It has been determined that a judgment becomes final, for purposes of coram
nobis relief, thirty days after the entry of the judgment in the trial court if no post-trial motion
is filed, or upon entry of an order disposing of a timely filed post-trial motion. Mixon, 983
S.W.2d at 670. It has been explained that:
The grounds for seeking a petition for writ of error coram nobis are not limited
to specific categories, as are the grounds for reopening a post-conviction
petition. Coram nobis claims may be based upon any “newly discovered
evidence relating to matters litigated at the trial” so long as the petitioner also
establishes that the petitioner was “without fault” in failing to present the
evidence at the proper time. Coram nobis claims therefore are singularly fact-
intensive. Unlike motions to reopen, coram nobis claims are not easily
resolved on the face of the petition and often require a hearing. The coram
nobis statute also does not contain provisions for summary disposition or
expedited appeals . . . . Although coram nobis claims also are governed by a
one-year statute of limitations, the State bears the burden of raising the bar of
the statute of limitations as an affirmative defense. See Sands v. State, 903
S.W.2d 297, 299 (Tenn. 1995).
Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).
Despite the statute of limitations, a trial court can consider an untimely petition if
applying the statute of limitations would result in the denial of due process. See Workman
v. State, 41 S.W.3d 100, 103 (Tenn. 2001); Burford v. State, 845 S.W.2d 204, 209-10 (Tenn.
1992). The court should examine: (1) when the limitations period would normally have
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begun to run; (2) whether the grounds for relief arose after the limitations period normally
would have commenced; and (3) if the grounds are later-arising, would a strict application
of the limitations period deny the petitioner a reasonable opportunity to present the claim.
Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).
In the case herein, we agree with the State’s argument that the petition for writ of error
coram nobis is untimely. Petitioner’s convictions was affirmed on direct appeal on April 28,
2003, and the supreme court denied permission to appeal on October 27, 2003. Petitioner
then sought post-conviction relief, the denial of which was affirmed by this Court on August
16, 2006. The supreme court denied permission to appeal on December 18, 2006. Petitioner
did not seek coram nobis relief until March of 2012, over six years later. Further, we agree
with the coram nobis court that Petitioner does not present sufficient evidence to establish
that either he is entitled to relief or that the statute of limitations should be tolled to permit
the late filing of his petition as he has not shown that he was “without fault” in failing to
previously present this evidence. T.C.A. § 40-26-105; Mixon, 983 S.W.2d at 668. Moreover,
Petitioner has failed to demonstrate that the newly-discovered evidence may have resulted
in a different judgment had the evidence been presented at trial. Lastly, Petitioner raises
several issues in his brief on appeal that were not presented to the coram nobis court. Issues
that are presented for the first time on appeal are considered waived. See Tenn. R. App. P.
36(a). Petitioner is not entitled to relief.
Conclusion
For the foregoing reasons, the judgment of the coram nobis court is affirmed.
___________________________________
JERRY L. SMITH, JUDGE
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